REGINA v CBK [2002] NSWCCA 457 | Case summary

15 November 2002 REGINA v CBK Judgment 1 BELL J: This is an application for leave to appeal against the severity of sentences imposed upon the applicant in the Sydney District Court on 17 April 2002. On that date the applicant pleaded guilty on indictment to the following three offences: (i) On 22 March 2001, at Darlinghurst, in the State of New South Wales, did supply a prohibited drug, namely, methylamphetamine in an amount of 4.78 grams; (ii) On 7 July 2001, at Surry Hills, in the State of New South Wales, did supply a prohibited drug, namely, methylamphetamine in an amount of 6.93 grams; (iii) Between 9 July and 12 July 2001, at Surry Hills in the State of New South Wales did on three or more separate occasions supply a prohibited drug, namely, methylamphetamine for financial interest or material reward. 2 The offences charged counts 1 and 2 were brought pursuant to s 25(1) & s 29 of the Drugs Misuse and Trafficking Act 1985 ("the DMT Act"). A penalty of fifteen years imprisonment and/or 2000 penalty units applies with respect to these offences. The offence charged in count 3 was brought pursuant to s 25A of the Drugs Misuse and Trafficking Act. It carries a maximum penalty of twenty years imprisonment and/or 3,500 penalty units. 3 In respect of the events charged in count 3, the applicant asked the sentencing judge to take into account a further ten offences pursuant to the provisions of s 33 of the Crimes (Sentencing Procedure) Act 1999. 4 The applicant was sentenced on count 1 to a term of two years imprisonment to date from 27 August 2001. It was common ground that by backdating the sentence to this date, the applicant received full credit for a period of seven months and twenty days served in custody referable to these offences. A non-parole period of fourteen months dating from 27 August 2001 and expiring on 26 October 2002 was specified. 5 In relation to the second count, the learned sentencing judge imposed a sentence of three years imprisonment to date from 27 August 2002. A non-parole period of two years dating from that date and expiring on 26 August 2004 was specified. 6 In relation to count 3, the applicant was sentenced to imprisonment for five years to date from 27 August 2003 and to expire on 26 August 2008. A non-parole period of three years to date from 27 August 2003 and to expire on 26 August was specified. The overall sentence amounted to one of imprisonment for seven years dating from 27 August 2001 and expiring on 26 August 2008, with an effective non-parole period of five years, to expire on 26 August 2006. 7 The facts upon which the sentencing judge proceeded may be summarised as follows. On 22 March 2001, the applicant was arrested in connection with the offence of obtain benefit by deception contrary to s 178BA of the Crimes Act 1900. This is the first offence set out in the Form 1 document. The applicant dishonestly obtained a Toshiba laptop computer and some other goods by deception, furnishing the retailer with details of a credit card in respect of which he was not the authorised user. 8 Following his arrest for this offence, the applicant was searched and found to be in possession of nine plastic bags containing methylamphetamine weighing, in total, 4.78 grams. His possession of this quantity of the drug gives rise to the deemed supply count charged in count 1. Following his arrest, the applicant was released on bail. 9 On 7 June 2001, the applicant again came to the attention of the police. He was searched and found to be in possession of a bundle of $50 notes wrapped in an elastic band. He had a plastic resealable bag which contained 6.93 grams of methylamphetamine. His possession of this quantity of the drug gives rise to the deemed supply charge in count 2. Again, following his arrest, he was released on bail. 10 In July 2001, police attached to the Surry Hills Police Station, conducted a covert controlled operation that targeted the applicant. The offence charged in count 3 is constituted by a number of sales of methylamphetamine to an undercover police officer between 9 July and 12 July 2001. At 12.30 pm on 9 July 2001, the undercover officer attended at the applicant's flat in Flinders Street, Darlinghurst and negotiated the purchase of one-tenth of a gram of methylamphetamine for the sum of $50. This quantity is known as a "point". 11 The following day the undercover officer again attended at the offender's premises and negotiated the purchase of a further two points of the drug. On 11 July, the undercover officer attended the applicant's premises and purchased two points. On 12 July 2001, this exercise was repeated on three occasions. At 10.35 am, one point was purchased; at 12.45 pm a further five points were purchased; and at 3.20 pm yet another five points were purchased. 12 Each of these transactions was recorded by the undercover officer using a concealed video camera. The quantities of methylamphetamine sold during the course of this controlled operation varied between .07 and .45 grams. 13 Later, on 12 July 2001, the police attended at the applicant's premises where they forced entry and conducted a search. In the course of the search they found twenty-three small resealable plastic bags containing methylamphetamine. The total quantity of the drug was 1.7 grams. 14 A number of other items were found during a search of the applicant's premises. His possession of these items constituted the offences set out in items 4 - 10 of the Form 1 document. They included possession of five Rohypnol tablets, possession of $650 cash (believed to be the proceeds of drug sales); possession of the 1.7 grams of methylamphetamine, to which I have referred; the larceny by finding of a throwing knife, together with a separate charge of possession of a prohibited weapon, relating to the same implement; and a further charge of possession of a prohibited weapon relating to a can of mace that was found in the dining room of the premises. 15 For completeness, I note that item 2 on the Form 1 related to the supply of methylamphetamine to an individual on 21 March 2001. Item 3 related to the possession of the sum of $1,575 found in the applicant's possession on 7 June 2001, it being reasonably regarded as having been unlawfully obtained. 16 The applicant was aged forty-one at the date of the commission of the offences. He had a criminal record, but had previously not been sentenced to a term of imprisonment. In September 1998, he was placed on a recognisance to be of good behaviour for twelve months following his conviction on a charge of making a false instrument. In November 1999, he was fined in relation to the possession of a prohibited drug. In June 2000, he was fined for maliciously making a false report concerning a fire. In addition to these matters, he had some driving related offences. 17 A pre-sentence report set out something of the applicant's background. His childhood had been marred by an alcoholic father who had dealt violently with his mother. The applicant had been the victim of sexual abuse, both by his father and an older sibling. The applicant had left home at twenty-one and ceased contact with his family. 18 One of the applicant's brothers died of HIV infection in 1987. The applicant had been treated for depression following the break down of a long-term relationship. It was at about this time that he had commenced use of methylamphetamines. The author of the report noted that the applicant's illegal drug use was a major contributing factor in his offending behaviour. 19 The sentencing judge accepted that the applicant had entered pleas of guilty in respect of each of the matters before the Local Court. There was some technical difficulty with the s 51A Committal for Sentence document. This explains why it was that the applicant was arraigned on indictment before the Court on 17 April 2002. His Honour accepted that the applicant's pleas had been entered at the earliest opportunity, and he discounted the sentences that he would otherwise have imposed by 25 percent. 20 The grounds of appeal filed with the notice of application for leave to appeal challenged the sentences upon four bases: 1. The sentence imposed are in aggregate manifestly excessive; 2. The learned sentencing judge failed to give an appropriate discount for the timing of the pleas of guilty; 3. The learned sentencing judge failed to give an appropriate reduction of the non-parole period, having found special circumstances; 4. The learned sentencing judge failed to give adequate consideration to the effect that the applicant's physical and psychological condition would pose for him while serving his sentences. 21 In her written submissions, Ms Loukas, who appears on behalf of the applicant, did not press ground 2. In addition to the matters addressed in grounds 1, 3 and 4, she identified a further ground, namely: "His Honour erred in determining the level of objective criminality by reference to a finding that the applicant was not a street seller." 22 In support of this further ground of appeal, Ms Loukas drew attention to the following passage in the sentencing judge's remarks on sentence: "Mr Bettens put before me various sentences imposed in relation to section 25A cases, where it might be thought moderate sentences were imposed, but these particularly relate to persons who are street sellers." 23 The learned judge went on to note that the applicant was selling drugs from his home and to make a finding that the applicant's conduct in the systematic supply of relatively small quantities of the drug was a "fairly organised" activity. He noted that there was no suggestion that the applicant was undertaking the exercise of selling drugs at the instance of some other person. 24 Ms Loukas submits that his Honour erred in distinguishing cases involving the sale of drugs by street sellers from the present. In her submission, the position of the individual within the drug dealing hierarchy is the pertinent criterion of criminality. Generally she contends that the fact that the quantity of drugs supplied in each instance was small was an important factor in determining the objective gravity of the offence. 25 In R v Smiroldo [2000] NSWCCA 120; 112 A Crim R 47, Hulme J (in a judgment with which Sheller JA and Dowd J agreed) considered the sentencing of offenders pursuant to s 25A of the Drugs Misuse and Trafficking Act 1985. At paragraph 15 his Honour observed: "On the other hand, it would be wrong to look merely at the quantity supplied on the occasions which led to a conviction and attempt to judge an offender's conduct by that quantity and those provisions of the Act which imposed penalties for supply and grade those penalties by reference to quantity. The persons at whom s 25A is directed are those who appear to be indulging in a practice or business of supplying prohibited drugs. It must, it seems to me, be relevant to consider the magnitude of such an operation. As great a quantity of a prohibited drug may be supplied by a series of small transactions as by a few large ones." 26 I detect no error in the approach that the sentencing judge took in distinguishing this case from those involving street sellers. The reference to "street sellers" at page 7 of his Honour's remarks appears to pick up something that Mr Bettens, who was then appearing for the applicant, said in the course of submissions. He took his Honour to a decision of this Court in R v Hoon & Pouoa [2000] NSWCCA 137 saying: "It was a Crown appeal. These people were runners in relation to a supply circumstance involving some other person. They were street runners these people." (T 17/04/02 at P29). 27 Hoon and Pouoa were teenage girls acting as runners for a heroin distribution network. Both were addicted to drugs and vulnerable persons. They were not involved in the administration of the network and did not receive any real profit from their activities. His Honour distinguished cases as such as those from the present in which it appeared that the applicant was engaged in the business of the supply of small quantities of methylamphetamine on his own behalf. 28 While, as Smiroldo makes clear, a consideration of the quantity of drugs supplied for the purposes of a s 25A Drugs Misuse and Trafficking Act 1985 offence will always have relevance to the exercise of the sentencing discretion, the gravamen of the offence is the fact of ongoing supply of prohibited drugs. The seriousness of the offence is to be gauged by the circumstance that it carries a maximum penalty of twenty years imprisonment. 29 The next ground of challenge developed by Ms Loukas in her written submissions was that the sentencing judge erred in giving insufficient weight to the applicant's medical and other subjective history. The applicant is HIV positive and suffers from Hepatitis C. These matters, and the applicant's other significant health problems, were detailed in the report of Dr Baker. Ms Loukas acknowledged that his Honour referred to Dr Baker's report in the course of his remarks on sentence. She complains that although his Honour made reference to the applicant's HIV condition, he did not note, in terms, Dr Baker's observation that the applicant suffered from Hepatitis C and that Hepatitis C "can now be more difficult to treat than HIV infection". 30 It is submitted on the applicant's behalf that his medical condition is such as to mean that the experience of imprisonment will be harder for him than for other prisoners. It was put that the sentencing judge was obliged to take this factor into account, both in the determination of the head sentence and the non-parole period. In this regard, Ms Loukas pointed to his Honour's observations at page 5 of the reasons for sentence: "The relevance of the medical history and the subjective history is that there are special circumstances which mean that it would be appropriate to set a non-parole period different from that which is normally set." 31 The complaint that the sentencing judge erred in failing to give appropriate weight to Dr Baker's report concerning the applicant's Hepatitis C condition is to my mind without substance. It is appropriate to set out the terms of Dr Baker's report of 28 February 2002 on this topic: "He gives a history of having been diagnosed HIV antibody positive in 1983. Our investigations have confirmed this diagnosis. His most recent blood test, in October 2001, show that he has moderate immuno deficiency, with a CD4 cell count of 351 per ml of blood. Mr K... has remained remarkably well over the years without requiring antiviral treatment. Most patients with HIV infection will suffer slowly deteriorating health, and almost all will die from AIDS, if they do not receive antiviral therapy. Mr K.... is approaching the point where he may require such treatment. Once he starts therapy he will probably respond well, although it remains very difficult to predict his long-term prognosis. He may respond well to treatment with long-term suppression of his HIV infection. Alternatively, he may not respond well to treatment and suffer from deteriorating health and possible death from AIDS. As well as HIV infection Mr K... suffers from some other major health problems that may cause him major difficulties in the future. He has chronic Hepatitis C, which may cause cirrhosis of the liver. This can now be more difficult to treat than HIV infection." 32 It is abundantly clear that the sentencing judge took into account the contents of Dr Baker's report. He observed at page 8: "I find special circumstances consisting in the grave illness of the offender and the likelihood that he will serve his custody in circumstances significantly more severe than those affecting other prisoners." 33 It was not necessary for his Honour to isolate each medical condition to which Dr Baker referred and comment on it. He accepted that the applicant is suffering from a grave condition and this consideration formed the basis of his finding that there were special circumstances such as to justify a departure from the statutory proportion between the head sentence and the non-parole period. 34 The principles governing the significance of ill health in sentencing are as stated in R v Vachelac [1981] 1 NSWLR 351; R v L (Unreported) NSWCCA, 17 June 1996 and R v BJW [2000] NSWCCA 60; 112 A Crim R 1. Generally, it is for the Executive to provide for the medical care of prisoners. The fact of ill health does not provide a shield against the imposition of custodial sentence. There will be cases in which the evidence discloses that the experience of imprisonment will be more difficult for an offender by reason of his medical condition, and in some cases it may be appropriate to mitigate the head sentence to take account of this consideration. In BJW Sheller JA (in a judgment with which the other members of the Court concurred) at [27] emphasised the need for there to be adequate evidence as to the nature and extent of the offender's illness, and its effect upon the conditions of the offender's incarceration. I do not consider that the contents of Dr Baker's report, or the other materials bearing on the applicant's medical and psychological condition, were such as to require that the sentencing judge reduce the head sentence that he would otherwise have imposed. 35 Ms Loukas also complains that the sentencing judge failed to mitigate the sentence by reason of the evidence of the effects upon the applicant of a severe assault on him in November 2000. Dr Baker reported that the applicant suffered multiple injuries, including fractures to his right wrist, pelvis, right middle finger and right ankle in the course of this assault. Since that time, the applicant has had considerable problems involving chronic pain, joint stiffness and of a psychological nature. The applicant was also suffering pain from a tear to the left shoulder that may have been exacerbated by the assault. 36 It is apparent from his Honour's remarks that the November 2000 assault was relied upon by the applicant as providing an explanation for the circumstance that he had a surveillance system installed at his home that included video cameras. In the course of evidence the applicant offered an account that the security equipment had been installed because of his fears arising out of the assault. This was by way of countering the suggestion advanced by the Crown that the video surveillance was consistent with the applicant's business as an ongoing retailer of methylamphetamine. 37 His Honour commented on the significance of the evidence of the assault in this context. He did not consider the fact of having been assaulted mitigated the sentence that was to be imposed. Given that his Honour found that there were special circumstances by reason of the applicant's grave medical condition, I do not think it is open to the applicant to complain that some further allowance specifically referable to the pain associated with the injuries inflicted during the assault should have been made. I will return to the question of the extent of the allowance made by reason of the finding of special circumstances in due course. 38 The applicant challenged the sentence imposed on count 3 and also in the aggregate as being manifestly excessive. 39 In her written submissions, Ms Loukas set out a schedule detailing the sentences imposed on persons convicted of offences under s 25A of the DMT Act. This morning she handed up a further schedule illustrating the pattern of sentencing by reference to the quantities of the drug involved in s 25A offences. It is particularly useful to look at the cases identified in the two schedules that involve the ongoing supply of amphetamines. 40 In this regard, I take into account the decision of R v Bacon [2000] NSWCCA 549 in which, by a majority, this Court allowed an appeal against the severity of a sentence of three years, made up of a minimum term of two years and an additional term of twelve months, following the applicant's plea of guilty. The appellant in that case supplied methylamphetamine on three days, over a period of one month. The amounts involved were 13.53 grams, 27.6 grams and 27.4 grams. The purity of the drug was considerably lower than these amounts would suggest. The supplies on each occasion were to an undercover officer. A sentence of three years, with a non-parole period of eighteen months was substituted. Simpson J considered a compelling circumstance in that case to be the applicant's voluntary cessation from drug trading before he became aware that he had been dealing with an undercover police officer. 41 In R v Butcher [2001] NSWCCA 188 the Court allowed an appeal against the severity of a sentence of seven years with a non-parole period of four years in a case involving the ongoing supply of methylamphetamine to an undercover police officer. A sentence of five years with a non-parole period of three years was substituted in that case. 42 In R v Smith [2002] NSWCCA 378 the Court dismissed an appeal against the severity of a sentence of four years imprisonment, with a non-parole period of three years with respect to a conviction for the ongoing supply of methylamphetamine contrary to s 25A(1) of the Drugs Misuse and Trafficking Act 1985. In that case there was one offence of goods in custody taken into account on a Form 1. 43 In R v Hofer [2001] NSWCCA 544 the Court allowed an appeal against severity in a case involving an offence of ongoing supply of methylamphetamine contrary to s 25A of the DMT Act taking into account one matter on a Form 1 relating to the possession of 62 grams of cannabis. The applicant had been sentenced to a term of five years with a non-parole period of three years. The applicant sold methylamphetamine to an undercover police officer on five occasions. Three of those occasions involved $50 deals. Two occasions involved sales of 7 grams, for which in each case the applicant received $300. The sentencing judge accepted that the applicant in this case had voluntarily given up the supply of drugs prior to his arrest. This was considered by Wood CJ at CL to be a significant circumstance in mitigation of the sentence. The Court substituted a sentence of four years imprisonment with a non-parole period of two years and four months. 44 In R v Hennock [2002] NSWCCA 229 the applicant pleaded guilty to one count pursuant to s 25A(1) of the DMT Act relating to his sale of methyl dioxide methylamphetamine (MDMA). He asked the sentencing judge to take into account on a Form 1 two counts of supplying prohibited drugs, one count relating to MDMA and the other relating to the supply of a small quantity of cannabis to a school girl. The applicant was aged nineteen at the time the offences were committed. He was sentenced to imprisonment for four years with a non-prole period of two years. His appeal against the severity of sentence was dismissed. 45 In R v Fogg [2002] NSWCCA 395 the Court allowed an appeal against the severity of sentence imposed in respect of one count of supply of methylamphetamine charged pursuant to s 25A of the DMT Act. The applicant sold small quantities of methylamphetamine on six occasions to an undercover police officer. On four occasions $50 deals were supplied, while on a further two occasions deals valued at $350 were involved. 46 There were some unusual and compelling subjective circumstances in that case detailed in a report of a psychiatrist, Dr Jolly. The sentencing judge sentenced the applicant to a term of four years and four months imprisonment. A non-parole period of three years was specified. The Court allowed the appeal and substituted a sentence of three years and six months imprisonment with a non-parole period of two years and three months. 47 While a sentence of five years with a three year non-parole period for an offence of ongoing supply contrary to s 25A(1) of the DMT Act in respect of the sale of small quantities of methylamphetamine is one of some severity, I am not persuaded that it is outside the range of exercise of sound discretion. As his Honour observed, this was a case aggravated by the circumstance that the ongoing supply offence occurred at a time when the applicant was on bail in respect of two earlier offences involving the supply of methylamphetamine. 48 Further, his Honour was required to take into account the ten offences on the Form 1. These ranged considerably in seriousness, but included the offence of obtaining a benefit by deception, to which I have earlier referred, a further instance of supplying methylamphetamine and the quantity of methylamphetamine found in the applicant's home. 49 When regard is had to the aggregate sentence of seven years imprisonment, it seems to me again to be a sentence of some severity and perhaps towards the top of the range. However, I am not persuaded that it falls outside the range. 50 As I have noted, the sentencing judge found that there were special circumstances for the purposes of s 44(2) of the Sentencing Procedure Act such as to justify a departure from the statutory proportion between the head sentence and the non-parole period. These were found in the applicant's subjective circumstances, and I infer principally in the evidence of his medical condition. His Honour varied the non-parole period imposed on count 3 by reason of that finding from one of five years and nine months to one of five years. When the sentence is viewed overall, the departure from the statutory proportion amounts to an allowance of three months only in the effective non-parole period. In this respect, I consider that the applicant has established that his Honour erred by failing to structure the sentence so as to give effect to the finding that he had made of special circumstances. 51 Having identified that error, it is appropriate to take into account material that was tendered on the hearing of the appeal. I refer firstly to the applicant's affidavit, affirmed on 13 November 2002. This recites that the applicant has suffered a degree of harassment and ostracism as a result of his HIV status becoming known within the prison community. The applicant also refers to being assaulted while in custody and to a deterioration in his HIV condition. He goes on to say that he is determined at this time (notwithstanding a significant reduction in his T- cell count) not to take up antiviral therapy, which I infer is available to him. He sets out his reasons for this stance in[11] of his affidavit. 52 I also take into account the affidavit of Nathan Steele, affirmed on 14 November 2002, to which are annexed a number of documents detailing the assaults upon the applicant in custody, and further medical reports. I note the contents of an updated report prepared by Dr Baker and a report of a psychiatrist, Dr Lucas, both dated 7 November 2002. 53 Dr Baker observes that the results of investigations show a marked decline in the applicant's immune status over the period of his incarceration. Other pathology results show continuing liver function abnormalities, consistent with chronic active hepatitis. Dr Baker notes that the medical records indicate that the applicant does not wish to have antiviral therapy. If he chooses not to have treatment, his health is likely to decline over the next few years, with the development of serious AIDS defining conditions at some point. If he takes medication, he is likely to remain in reasonably stable health for many years; "It remains difficult to establish the role of stress in immune functions. However, K appears to have had a marked decline in his immune function whilst in incarceration." 54 I also take into account the report of Dr Lucas, p 11 and 12 under the subject heading "Opinion": "From the psychiatric point of view, Mr K's post-traumatic stress disorder has resolved to some extent but there are residual symptoms and he will remain vulnerable to an exacerbation of the disorder depending on his exposure to traumatic events especially in the prison setting. His psychiatric prognosis would be adversely affected if the condition is exacerbated. He hopes for a classification which will place him in a more comfortable prison circumstances. He is conscious that stressful circumstances may affect the progress of his HIV infection. I am not in a position to provide an opinion about the role of stress on this condition. Mr K's dependence on amphetamine will be in abeyance during his time in custody but it is an important problem with which he needs to deal sooner rather than later. Counselling is available in prison but the main avenues for treatment are in the community. Mr K may be suitable for a residential treatment program at the appropriate time. While Mr K is in custody his medical problems can be monitored and appropriate treatment given. This has been done so far and I am sure it will continue. However, counselling and support will be more limited in prison than they are in the community. With regard to his sentence I think it can be said that given his psychiatric and medical conditions the time he spends in custody should be kept to the minimum possible when other sentencing factors are taken into account. Overall, his various conditions will be best managed in the community. As deterioration is possible in the foreseeable future this could be taken into account when considering his appeal against the severity of his sentence." 55 Taking these matters into account, the orders that I propose are as follows: The application for leave to appeal be granted. The appeal be allowed. The sentences imposed in the District Court be confirmed, but the non-parole period imposed with respect to count 3 be varied and a new non-parole period specified, being a non-parole period of two years to date from 27 August 2003, such non-parole period to expire on 26 August 2005. 56 WOOD CJ at CL: I agree. I wish only to repeat the observations which I made in R v Khaled [2001] NSWCCA 169. Section 25A of the Drugs Misuse and Trafficking Act 1985 was introduced in order to provide a strong deterrent to those who may be tempted to engage in an ongoing trade in drugs. It needs to be clearly understood that s 25A offences are considerably more serious than s 25 offences, as is indicated by the increase in the maximum available penalty. 57 An offender charged with a s 25A offence cannot rely upon an argument that the act of supply was an isolated event. Nor can expect to receive a sentence of the kind which may be appropriate for a single offence of supply. Significant sentences must be imposed in such cases in order give effect to the clear legislative intention to discourage the ongoing trade in drugs, which depends entirely upon the availability of a person such as the present applicant. 58 The head sentence imposed in this case was, in my view, well within range, having regard to the matters identified by Bell J, particularly the fact that the applicant re-offended twice while on bail, and the need for the sentence to reflect the additional penalty involved in the Form 1 offences. I agree however that the effect of the accumulation was not properly taken into account by his Honour in relation to the non-parole period, and I agree with the orders proposed by Bell J. 59 DOWD J: I agree with the orders of Justice Bell. I also agree with the Presiding Judge.

REGINA v CBK

At a glance

Court

Decision date

Before

Source

Judgment (9 paragraphs)

Parties

Cases Cited (10)

Cited By (19)